CHETU, INC. v. KO GAMING, INC. , 261 So. 3d 605 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHETU, INC.,
Petitioner,
v.
KO GAMING, INC.,
Respondent,
No. 4D18-1551
[January 9, 2019]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No.
CACE-15-016693 (08).
Paul D. Turner, Benjamin L. Reiss, and Joey M. Lampert of Perlman,
Bajandas, Yevoli & Albright, Fort Lauderdale, for petitioner.
No appearance for respondent.
KUNTZ, J.
Chetu, Inc. petitions for a writ of certiorari and asks that we quash an
order allowing discovery of Chetu’s and its non-party employees’ private
financial information. We grant the petition and quash the order.
Chetu filed a complaint against respondent KO Gaming, Inc. for failure
to pay for services rendered and asserted claims of (1) breach of written
contract, (2) open account, (3) account stated, (4) quantum meruit, and (5)
unjust enrichment. Chetu later dismissed the quantum meruit and unjust
enrichment claims. KO Gaming asserted affirmative defenses and brought
two counterclaims.
During discovery, KO Gaming served a notice of taking deposition
duces tecum of various areas of inquiry, including Chetu’s “profit margin,
estimates, projections, cost analysis or formula to determine profit for
agreement.” KO Gaming also requested Chetu to produce various
documents at the deposition, including “all documents related to profit
margin, estimates, projections, cost analysis or formula to determine profit
for agreement.” Chetu sought a protective order and, at a hearing on the
motion, counsel for KO Gaming argued the requested discovery was
relevant to a counterclaim asserting Chetu understaffed the project.
After the court denied a motion for protective order, Chetu filed this
petition for writ of certiorari. We issued an order directing KO Gaming to
show cause why the petition should not be granted. KO Gaming did not
respond.
Here, as below, Chetu argues the private financial information sought
by KO Gaming is not discoverable because it is irrelevant to the issues
pending in the lawsuit. In essence, Chetu asserts that financial
information, including profit projections and the salary and compensation
of its employees, is not relevant to this breach of contract action. We agree.
“[T]he disclosure of personal financial information may cause
irreparable harm to a person forced to disclose it, in a case in which the
information is not relevant.” Friedman v. Heart Inst. of Port St. Lucie, Inc.,
863 So. 2d 189, 194 (Fla. 2003) (quoting Straub v. Matte, 805 So. 2d 99,
100 (Fla. 4th DCA 2002)). Thus, the law “strikes the proper balance
between allowing appropriate discovery and protecting litigants’ privacy
and equitable interests.” Id.
That balance allows discovery relating to personal financial information
when it is relevant to the pending action. Id. (citing Epstein v. Epstein, 519
So. 2d 1042, 1043 (Fla. 3d DCA 1988)). But if it is not relevant to the
pending action, that balance precludes the discovery of personal financial
information unless it is in aid of execution after judgment. Id. (citing
Gruman v. Bankers Tr. Co., 379 So. 2d 658, 659 (Fla. 3d DCA 1980); Cooper
v. Fulton, 117 So. 2d 33, 35-36 (Fla. 3d DCA 1960)).
KO Gaming hired Chetu to provide computer software programing
services in exchange for an hourly rate. Chetu claims KO Gaming did not
pay for services rendered under the contract. On the other hand, KO
Gaming claims Chetu failed to perform as required by the contract.
The trier of fact will decide whether either party breached the contract.
To prove a breach of contract, a party must establish a valid contract, a
material breach, and damages. See Friedman v. N.Y. Life Ins. Co., 985 So.
2d 56, 58 (Fla. 4th DCA 2008). The private financial information of Chetu
and its non-party employees is not relevant to that determination. Thus,
we quash the order.
Petition granted; order quashed.
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DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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